In Colombia both the legislation and the case law, have understood the importance of respecting and promoting the free right to work for people who have any type of disability including physical or mental disabilities.

In this regard, since the issuance of Law N° 361 of 1997, there have been advances in promoting different mechanisms and incentives to guarantee the social integration for those people who have any health limitation. Moreover, there have been efforts and indeed considerable progress through the legislation in order to: i) generate incentives for employers that hire those people, and ii) guarantee the labor stability (health immunity) to those who are hired.

In this sense, the main objective of the health immunity, that protects people with disabilities, is to prevent employees from being discriminated by their employers, with a termination of their labor contract motivated by their disability or in relation with such.

However, these mechanisms and initiatives are not being implemented effectively at the moment due to the labor reality of our country. The health immunity that protects people that are in a situation known as “manifested weakness” (name given by the Constitutional Court of Colombia), has been misinterpreted by the judges who have extended such immunity without any limitation, even for cases that are not covered by such protection. This unlimited protection has prevented terminations of labor contracts that are not only fair but also necessary for the labor relations and the working environment of a Company.

That is the main reason why some employees have taken attractive advantages of any issue related to their health (even if the health affectation is a simple flu, stress or any other sickness with a lesser importance) to feel that they are able to do whatever they want or not to do anything at work, because they are “untouchable” by their employers because of their health situation.

Even more, this unlimited protection has caused some employees to believe that they can make very serious offenses to their job duties, even incurring in criminal acts such as theft, minor cases of swindling, among others, and they cannot be fired because of their health condition or even worse, they have to be very well paid with a high amount of severance, if their employers want to terminate their Contract by signing a mutual agreement for the termination.

In our opinion, this extreme protection given by the judges exceeds the parameters of the legal basis. That has generated an important disincentive for employers hiring people with disabilities because there’s a higher risk and fear of not being able to terminate a contract when it is clearly required be terminated with a fair and/or legal cause, than the benefits created by the legislator for hiring disable people.

Nowadays, the majority of the employers in Colombia are not willing to hire employees with any kind of disability, because if they do, they face the risk of having workers who may incur in serious offenses without being able to fire them, unless they can previously obtain permission from the Ministry of Labor, which in practice is very hard to be obtained, given that such process is a very long and complex ordeal.

Therefore, it is very sad to say that the hard work of those who are looking forward to generate the inclusion of people with disabilities is not yielding sufficient results. Case law is trying to prevent discrimination and promote the equal right to work, but unfortunately, the produced effect is the opposite.

In this sense, the only alternatives employers count with in order to terminate a Contract of an employee with a disability, as we said before, even if he or she has incurred in a very serious offense or a legal cause has occurred, seems to be: (i) by terminating the Contract without just cause with the payment of the legal severance, which in some cases may be very high; or (ii) by mutual agreement, which has to be the result of a negotiation with the employee which may also include the payment of a high amount of money.

In short, the previous reflection takes us to a first conclusion: until there is not a clear limitation in the protection of the health immunity that applies to people with disabilities; the programs, laws and all the efforts the government may do in order to generate the labor inclusion of those people and stop discrimination against them, will be unsuccessful, and therefore the State will not accomplish its duty to protects the rights of those citizens.

In this regard, it is mandatory that judges should respect the parameters defined by the legislation and endorsed by the Supreme Court of Justice, which has established that the health immunity should only protect people with certificated disabilities, with a moderate or high degree. On the other hand, it is necessary for judges to allow termination with just cause without having to obtain the previous permission from the Ministry of Labor, because in those cases it is evident that the termination has not relation and it is not in reason of the disability of the employee.

Recently, there is new criteria in the case law that seems to be the light at the end of the tunnel. The Constitutional Court has recently established that employers does not needs to obtain the previous authorization of the Labor Ministry, when there is a proven just cause; because in those cases, it is clear that the termination is not discriminatory because it has no relation with the disability of the employee. Nevertheless, this case law has to be even more developed and applied by all judges in order for it to be the first step to solve the situation.

The California Fair Employment and Housing Council has recently amended the regulations to the California Fair Employment and Housing Act, which take effect on April 1, 2016.  These amendments provide basic provisions to a mandatory anti-harassment policy, and clarify some of the protected categories in the Act.  The following are a few highlights of these amendments.

The Regulations Mandate an Anti-Harassment Policy

Although many California employers already have an internal anti-harassment policy in their employee handbooks, the amendments to the regulations now make it mandatory, and require the inclusion of certain elements in the policy.  With these amendments, starting April 1st, every California employer must have a written harassment, discrimination, retaliation and prevention policy in the workplace.  The policy must be translated into every language that is spoken by at least 10% of the workforce, and it must be distributed in a method that ensures that the employees receive and understand the policy.  This may include providing a hard copy, sending a copy via electronic mail with an acknowledgment form for the employees to sign and return, posting the policy on the internet with a system to ensure all employees have read and acknowledged receipt of the policy, and/or discussing the policy upon hire and/or during new hire orientation.  Employers are also required to distribute the Department of Fair Employment and Housing’s Brochure 185 on Sexual Harassment.

To meet the requirements of the amended regulations, the policy must include the following:

• List the categories of individuals protected under the Act, which currently are as follows:
  –     Age (40 and over)
  –     Ancestry
  –     Color
  –     Religion (including religious dress and grooming practices)
  –     Denial of family and medical care leave
  –     Physical or mental disability (including HIV and AIDS)
  –     Marital status
  –     Medical conditions (meaning cancerous/related health impairments and genetic characteristics)
  –     Genetic information
  –     Military and veteran status
  –     National origin (including language use restrictions and possession of driver’s license obtainable by undocumented persons)
  –     Race
  –     Sex (including pregnancy, childbirth, breastfeeding and related medical conditions)
  –     Gender, gender identity, gender expression and sexual orientation

• Indicate that the law prohibits managers, supervisors, co-workers and third parties from engaging in conduct prohibited by the Act
• Create a complaint process to ensure confidentiality, a timely response, impartial and timely investigations by qualified personnel, documentation and tracking for reasonable progress, appropriate options for remedial actions and resolutions, and timely closures
• Provide a complaint mechanism that does not require the employee to complain directly to his or her supervisor
• Instruct supervisors to report complaints to a designated company representative
• If the employer has 50 or more employees, to include this as a topic in mandated sexual harassment prevention training
• Indicate that if the employer receives an allegation of misconduct, it will conduct a fair, timely and thorough investigation
• Provide all parties appropriate due process, and reasonable conclusions based on the evidence collected
• A statement that confidentiality will be kept by the employer to the extent possible, but to also indicate that the investigation will be completely confidential
• A statement that if misconduct is found, appropriate remedial measures shall be taken
• A provision that makes clear to employees that they shall not be exposed to retaliation as a result of lodging complaints or participating in a workplace investigation.

Employers should review and update their policies to reflect the new regulations.  The new regulations also provide that an employer may still be liable for sexual harassment even if the conduct was not motivated by sexual desire.

New Requirements for Mandatory Sexual Harassment Training for Supervisors

Prior to the amendments, the legislature already passed mandatory sexual harassment training for employers with 50 or more employees.  The amendments to the regulations impose new requirements with respect to this mandatory training.

Most significantly, the regulations now require training regarding “abusive conduct.”  The elements of the training require the following topics to be covered:

• A discussion regarding the definition and specific elements of “abusive conduct”
• Defining “abusive conduct” as “conduct of an employer or an employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests”
• Emphasize that a single act shall not constitute abusive conduct unless the act is especially severe or egregious
• Cover the negative effects of abusive conduct on the victim, others in the workplace and the employer, for example, reduced productivity and morale
• Address in a meaningful way the prevention of abusive conduct

Examples of abusive conduct may include verbal abuse, or undermining a person’s work performance.  Employers must retain its training records for a minimum of two years and keep a complete set of the training materials, a list of attendees, the training provider, the date of the training, the sign-in sheet and copies of all certificates of attendance.

Definitions for Sex-Based Discrimination and Sexual Harassment

The regulations have also been amended to prohibit discrimination on the basis of “gender identity” and “gender expression.”  The new regulations define “gender expression” as a person’s gender-related appearance or behavior, regardless of any stereotypical perceptions associated with the person’s sex at birth.  In addition, “gender identity” is defined as a person’s identification as either male or female, regardless from and person’s sex at birth.  “Transgender” is defined as a person whose gender identity is different from the person’s sex at birth.

Revisions Regarding Pregnancy Discrimination and Pregnancy Disability Leave

The regulations related to pregnancy disability leave have also been amended with respect to the provision addressing when a woman is disabled by pregnancy, and defining who is an eligible female employee.  This has been made applicable to pregnant transgender individuals.  The regulations also clarify that a pregnancy disability leave does not need to be taken in one continuous period of time, but employees are eligible for up to four months of leave per pregnancy, not per year.

The regulations require employers to distribute and post a notice regarding the rights and obligations of pregnant employees.

Revisions Regarding Religious Creed Discrimination

The amendments to the regulations expand the definition of “religious creed” to include all aspects of religious belief, observance, and practice, including religious dress and grooming practices as defined by the Fair Employment and Housing Act.

In addition, the regulations also state that refusing to hire an applicant or terminating an employee to avoid accommodating a religious practice constitutes religious creed discrimination.  The regulations further clarify that unless the employee asks, accommodating an employee due to religion is not reasonable if it requires the employer to segregate the employee from customers or the general public.  It also makes unlawful for an employer to discriminate or retaliate against one who requests a reasonable accommodation for religion, irrespective of whether or not the request is granted.  This obligation to accommodate for religious observances, dress and grooming are extended to apply to apprentices and unpaid interns.

Amendments to Regulations Regarding Support Animals and Disability Discrimination

At the outset, the amended regulations provide that it is unlawful to discriminate or retaliate against a person for requesting reasonable accommodation based on a mental or physical disability.  The amendments also clarify that whether a “support animal” constitutes a reasonable accommodation shall, as in other contexts, be determined by “an individualized analysis reached through the interactive process.”  A “support animal” is defined as “…one that provides emotional, cognitive, or other similar support to a person with a disability, including but not limited to, traumatic brain injuries, or mental disabilities such as major depression.”  In addition, the new regulations no longer require that the support animal be trained to provide assistance for the employee’s disability.

Amendments Regarding Unpaid Interns and Volunteers

An unpaid intern and volunteer has been defined as an individual, usually a student or trainee, who works without pay in an unpaid internship or other limited duration program to provide unpaid work experience, or as a volunteer.  Under the amendments, it is unlawful for employers to discriminate in the selection, termination, training or other terms and treatment of interns.  It is also unlawful to harass unpaid interns, volunteers and persons providing services pursuant to a contract.

Discrimination Based on Undocumented Persons’ Driver’s Licenses is Prohibited

The regulations were also amended to comply with recent legislation that prohibits discrimination against applicants or employees who hold a driver’s license that can be issued to undocumented persons who are unable to submit proof that their presence in the United States is authorized under federal law.

Take-Aways

These amendments should prompt employers to review and revise their policies and to distribute them as soon as possible.

Introduction

This paper discuses workers’ compensation in Uganda. It addresses the question of whether contracting out, outsourcing and casualization of labour enables employers escape liability for workers’ compensation. Its estimated that in Uganda on average 2,000 cases of work related accidents are reported annually mainly in the areas of construction, factories, security and transport and commercial agriculture. This is amidst few employers providing a safe and healthy working environment for descent work.[1] A recent study by Platform for Labour Action a non-government organisation in Uganda also indicates that a result of accidents workers suffer injuries such as body cuts falling off buildings, electric shock body bangs, being hit by falling objects, car accidents, electric shock, illnesses such tuberculosis and tetanus, animal bites, body pains, eye infections and malaria. Respondent employers also indicated that body cuts were the most common accident in the work place. Despite these statistics a good number of employers do not insure their workers for workers’ compensation purposes. This is partly due to contracting out, outsourcing and casualization of labour amidst the lack of awareness of the legal provisions under the Workers Compensation Act Cap 225. The Act does not define workers’ compensation probably because it’s a common law principle however it has been defined as the system whereby an employer must pay, or provide insurance to pay, the lost wages and medical expenses of an employee who is injured on the job[2] It has three elements accident, injury and benefits.

Workers’ compensation enables the employer not to suffer harm as a result of his employees suffering injury in the course of work. It also cushions the employer against being sued for the injury. This however does not preclude the employee from suing third parties whose negligence contributed to the work injury[3]. Workers compensation provides a safety net for the injured workers.

Overview of workers’ compensation and employers’ liability in Uganda

Uganda’s workers’ compensation is regulated under the Workers Compensation Act which provides for compensation to workers for injuries suffered and scheduled diseases incurred in the course of their employment. It applies to all employment within Uganda with the exception of active members of the armed forces of Uganda. The Act defines a worker as

(i) any person who performs services in exchange for remuneration, other than a person who performs services as an independent contractor; or[4]
(ii) an apprentice who is engaged primarily for the purpose of receiving training in a trade or profession.

Under the Act the employer is liable for personal injury by accident if it arises out of and in the course of a worker’s employment. The employer is not liable in respect of an injury which does not either— result in permanent incapacity; or incapacitate the worker for at least three consecutive days from earning full wages at the work at which he or she was employed.
The course of employment according to the Act covers ;
· acts undertaken by a workers to protect any person on the employer’s premises whom the worker believes to be injured or imperiled,
· acts where worker is injured while protecting the property on the employer’s premises.
· any personal injury by accident arising while the employee is traveling directly to or from his or her place of work for the purpose of employment . However the employee who suffers injury by accident arising while traveling to or from his or her place of work has the onus to show that such travel was directly related to work

It should be noted that compensation is payable whether or not the incapacity or death of the worker was due to the recklessness or negligence of the worker or otherwise. Further any accident arising in the course of employment is presumed to arise out of employment unless the contrary is proved.

The employer therefore under Ugandan law which is based on the common principle therefore has liability / duty to [5] provide a safe working environment and to protect the worker while in the course of employment and in addition
· ‘to pay compensation in accordance with this Act.[6]’ for personal injury by accident which arises out of and in the course of a worker’s employment,
· To pay compensation even where the incapacity or death of the worker was due to the recklessness or negligence of the worker or otherwise’’.
· to prove that the accident or injury did not arise out of employment if the employer is to escape liability.
· to report the accident to the labour Officer
· provide medical facilitation to the worker insure him/herself [7]in respect of any liability which he or she may incur under this Act to any worker employed by him or her.

Where the employer fails to comply with subsection (1) or (2) without reasonable cause, commits an offense and is liable on conviction to a fine not exceeding ten currency points. This is equivalent to Two hundred thousand Uganda shillings ( UGX 200,000)and approximately U$ 60.

An employer who contravenes this section commits an offence and is liable—
(a) on a first conviction to a fine not exceeding ten currency points;
(b) on a second conviction to a fine not exceeding twenty currency points; and
(c) on a third and subsequent convictions, to a fine not exceeding one hundred and fifty currency points or imprisonment not exceeding twelve months or both.

In order to minimise risk the employer is required to insure their workers against risks such as injury while in the course of employment. The purpose of this insurance is not to transfer the liability to compensate the worker to the insurer but rather to protect the employer from the risk. In the event that the employer is deemed liable under the law but their insurer declines to cover the liability, the employer is still liable to pay the attendant compensation. Even in instances of bankruptcy, the employers’ rights against the insurer in relation to liability notwithstanding bankruptcy laws and the winding up of companies, are be transferred to and vest in the worker; [8]Thus even during bankruptcy the employers is protected from risk by insurance.

Emerging trends and workers compensation

A good number of workers are categorised as casual labourers or as sub-contractors. In Uganda 81.5% is categorised self-employed, 73% in agriculture, forestry and fisheries, 9% in trade and 5% in manufacturing.

Employers have adopted strategies of outsourcing to human resource firms and subcontracting out services such as call centre and pay roll management. Casualisation of labour has led to many workers to work in the same workplace for a long period. Since they are casual, they lack documentation to support their claim of employment and in most cases even where they sign contracts since they are categorised as casual the contract expressly provides for non-liability by the employers but also that they are not entitled to any benefits from the company they work for on a casual basis. Although one may argue that the workers’ compensation Act for Uganda was designed during the colonial and post-colonial era and thus no longer addresses the current needs of the workers and employers, such as the factories, small and medium enterprises, self-employees, contracting out and casual labour, in its present form, it still renders the employers liable for workers’ compensation even for the casual and outsourced labourers. This is because they are liable for personal injury by accident of a worker if it arises out of and in the course of a worker’s employment. The Act does not take into consideration the employers’ income, or capital, therefore, even when an accident occurs, and the employer cannot afford to compensate the workers, they remain liable. In some sectors such as small scale welding casual workers come to work with their own tools of trade, and work is paid per product completed, for example, after completion of a window, the worker will be paid for that specific work.

These trends raise the questions of in case of injury in the course of work where is the employers’ liability, who is liable to pay workers compensation. Is it the contracting party or the immediate employer? In such instances if they are a subcontractor the employers are expected to meet the compensation in the event of an accident. Under section 22 of the Workers Compensation Act the liability of the employer is extended to the workers of the subcontractors when it states that;

‘Where a person awards a contract or subcontract to an employer for the execution of any piece of work, that person shall be liable to pay to any worker employed in the execution of the contract or subcontract by the employer any compensation under the Act as if that worker had been directly employed by that person’.

The liability of the employers also extends to the employer who last employed the worker during the period of twenty-four months under section 27(1)(b) is liable to pay the compensation unless that employer proves that the disease was not contracted while the worker was in his employment.[9]

Conclusion

Uganda Workers Compensation Act provides for liability of employers any accident arising in the course of employment unless the contrary is proved. It requires employers to insurer their workers against such risks. A good number of employers still do not cushion themselves against such risks due to lack of awareness of the law. Some employers also adopt strategies of outsourcing firms and subcontracting out services and casualization of labour. However, these strategies do not remove the liability of the employers for injuries suffered by any workers in the course of their employment under Ugandan law.

[1] Uganda Second National Development Plan 2015/16 – 2019/20 (NDP11) Draft 3rd March 2015 Government of Uganda , National Planning Authority
[2] http://legal-dictionary.thefreedictionary.com/Workers’+Compensation
[3] http://legal-dictionary.thefreedictionary.com/Workers%27+Compensation
[4] Section 1
[5] Under Section 3
[6] Section 3(1)
[7] Section 18
[8] Section 20
[9] Section 29

What Companies Need to Know About Employment Law When Setting Up Business in The United Kingdom

Any company starting a business in the UK will need to engage the services of others, including through the employment of staff. It is therefore inevitable that you will come into contact with aspects of UK employment law.

Beginning an Employment Relationship

Once you have made the decision to do business in the UK, you need to hire people to work for you. The first step is to agree the type of relationship you want it to be and then the terms people will work under.

Type of Worker

UK employment law grants differing types of protection to differing types of worker. Employees get the most protection with independent contractors and other types of worker (such as a member of a limited liability partnership) still benefiting from some more limited rights.

For the purposes of this article, we are assuming you are hiring employees but to be clear, many of the protections also apply to different working arrangements.

Statement of Terms

Under English law you need to provide an employee with written terms including: your name and theirs; the date their employment began; their job title; their place of work; their salary; their working hours; holiday entitlement and pay; sickness leave and pay; details of any pension; and their notice period (how far in advance they have to tell you that they are leaving and how much notice you have to give them of dismissal).

For an employee working for you in the UK who is not in a trade union, any other terms are optional.

 Working Time Regulations

When you specify the hours and holiday terms in your contract, you must take into account the requirements of the Working Time Regulations.

If you expect the employee to work for over 48 hours a week, you should include in their contract a clause for them to opt out of that limit.

Your employees’ holiday entitlement must be at least 5.6 weeks per year, equating to 28 days per year inclusive of public holidays or, typically, 4 weeks plus public holidays. You are free to offer more; indeed, it is market practice in many sectors to offer an additional week or two. The holiday must be paid as if it is a normal working day.

National Minimum Wage

You may need to check that the pay you offer any junior employees is not lower than the National Minimum Wage provided for in English law. You must pay all employees over the age of 21 at least £6.70 per hour.

From April 2016, the minimum wage will be replaced with a ‘living wage’ (i.e. the pay employees would need to meet the cost of living in their area). From then, you must pay staff at least £7.20 an hour. It will increase in stages and the government says it will be £9 by 2020.

Restrictive Covenants

For certain hires, you will want to prevent them walking into a job with a competitor where they can use your confidential information and take your clients and staff with them. To prevent this, you can put restrictive covenants into the employment contract.

However, if these are more restrictive than the court thinks reasonable they will be struck down in their entirety and will not be replaced with shorter or more limited restraints. Therefore, the content should vary depending on what the employee does, their seniority and what you are trying to achieve.

The Working Relationship

Parental Leave

Employees who have (or adopt) a child are entitled by law to a certain length of time off work and a certain level of pay for it.

Mothers have to take 2 weeks’ maternity leave after giving birth but can, and typically do, take up to 50 additional weeks’ leave afterwards. You need to pay mothers statutory maternity pay for up to 39 weeks; the first 6 weeks should be paid at 90% of her usual wage and £139.58 for the remainder. You are free to agree to pay more than that, and many employers do. The Government reimburses employers for most of the cost of maternity pay.

Fathers are entitled to up to two weeks’ paid paternity leave.

A new system of Shared Parental Leave is now in force. If your employee asks to take advantage of the scheme, she and her partner can share her 50 week leave period (i.e. excluding the 2 weeks’ compulsory leave) between them in whatever proportion they choose. The rules are very similar for adoptive parents, though they can share the full 52 week entitlement.

Dealing with Illness

An employee who takes time off work due to illness must be paid at least the amount specified as statutory sick pay (£88.65 per week). That said, most employers will have a sickness absence policy providing for more generous payments for a set amount of time.

If an employee is off sick for over a week, you are entitled to ask for a doctor’s note to evidence their illness. Whilst they are away, it is good practice to keep in contact with them and, if the absence is long enough, provide a return to work interview and rehabilitation.

If long-term sickness absence is posing a problem, you should go through a capability procedure and see what can be done to improve the situation. This would involve formal meetings, medical evidence and consideration of whether you can make changes to help them return to work (including changing their duties). If the employee is disabled, you have a separate duty to make reasonable adjustments.

It is conceivable that, having gone through a capability procedure, you do not feel that you can continue to employ the person. Be aware that, if they are disabled, this risks the finding of discrimination if not properly handled. Another option is to keep them ‘on the books’ without pay so that they continue to receive health insurance benefits.

Discrimination

UK workers are protected from being treated less favourably than others by reason of:

• Age;
• Disability;
• Gender reassignment;
• Marriage/civil partnerships;
• Pregnancy/maternity;
• Race (including nationality);
• Religion/belief;
• Sex; and
• Sexual orientation.

Both direct and indirect discrimination are unlawful. Direct discrimination occurs when the employee is mistreated because of a protected characteristic, e.g. because they are gay. Indirect discrimination takes place when a practice is applied in a way which places people with the characteristic at a disadvantage. For example, only employing people above a certain height would discriminate against women unless it can be justified. A person might be discriminated against at any time during a working relationship – even during recruitment – so ensure that you conduct all practices and procedures in non-discriminatory ways.

An equality and diversity policy will help prevent workplace discrimination.

If you are found to have dismissed an employee for a discriminatory reason, the dismissal will be automatically unfair and you may be liable for uncapped damages.

Whistle Blowing

UK employment law provides protection to employees who raise certain kinds of concerns with, amongst others, their employers. The employee will be protected as a whistle blower if the concerns are made: (a) ‘in the public interest’ (essentially, not just for their own gain); and (b) about a criminal offense, breach of legal obligations, miscarriages of justice, health and safety dangers; environmental damage, or a cover-up of any of those things.

During employment, whistle blowers are protected from all maltreatment from demotion, threats, suspension, loss of pay to numerous other things. Even if you do not subject the employee to this treatment, you may be liable if another person you employ does. It is therefore worthwhile to have clear policies on whistle blowing and misconduct.

Aside from being protected from maltreatment during employment, whistle blowers cannot be dismissed from their job for having blown the whistle. To do so is considered an ‘automatically unfair dismissal’ with uncapped damages.

Terminating an Employee

Notice of Dismissal

Unless the employee has done something very seriously wrong, you will need to give an employee notice of termination of employment. The length of the period must be stated in the contract and it cannot be less than the statutory minimum. The statutory minimum is one week per full year of employment up to a maximum of 12 weeks (unless they have been there under 2 years, in which case the minimum is a week after the first month). The statutory minimum notice an employee is required to give is one week.

Market practice is for contracts to have reciprocal notice periods of statutory minimum or a month for junior staff, three months for middle management and professional staff and six months to a year for the most senior executives.

You can pay employees in lieu of notice so that they leave immediately, or ask that they stay home during their notice period (‘garden leave’), though it is legally safer if the contract gives you the right.

Unfair Dismissal

Any employee you employ for over 2 years will gain unfair dismissal rights. This means that if you dismiss them, they can sue and the onus is on you to show the dismissal was fair.

There are 5 reasons for dismissal which are accepted in statute as being potentially fair: (i) conduct; (ii) capability; (iii) redundancy; (iv) where the employee working for you would be contrary to the law (e.g. employing a driver who has lost their licence); and (v) some other substantial reason. The three most commonly used are redundancy, conduct and capability.

Even where you can establish one of those reasons you still need to show that you have acted reasonably in all the circumstances of the case.

In practice, this means that if you suspect that the employee has committed misconduct, you must investigate the circumstances properly before deciding to dismiss. Always give the employee the chance to explain. You should have a disciplinary procedure in place and follow it in every case. If you suspend the employee, keep the suspension under review and ensure that it is no longer than necessary.

Where capability is the problem, consider putting the employee on a performance improvement programme (a ‘PIP’). A PIP is a good way to ensure that the employee knows what the problem is and is given the opportunity to improve. In some cases, it is appropriate for you to offer training or support to help the employee address the issue. If no progress is made (and there is no good reason for that), you may be entitled to dismiss.

If the tribunal decides that you dismissed an employee unfairly, you will be ordered to pay compensation to the employee comprising a ‘basic award’ reflecting age, length of service and salary (with a cap of £14,250) and compensation amounting to the lower of a year’s pay and £78,335. The limit does not apply, however, if the tribunal finds that you dismissed for the employee for certain reasons (including discrimination and whistleblowing).

Employment Tribunals

Employment Tribunals are the forum in which most disputes relating to employment relationships are resolved. In comparison to courts, they are relatively informal and are designed to be accessible to employees who do not have legal representation.

Individuals must pay a fee to commence a claim. Once the case is issued, set stages will take place before the trial. Those steps include disclosure of documents and exchange of witness statements; the Tribunal will usually give directions on each stage at a preliminary hearing.

Trials will be heard either by an employment judge sitting alone, or by a panel. A panel will include the judge and two lay members, one of whom will usually have a pro-employee background (often through trade union work) and the other pro-employer (such as in human resources). They will hear evidence and submissions and pass judgment.

The usual rule is that parties in the Employment Tribunal meet their own costs, though the Tribunal has discretion to order otherwise against a party who has acted unreasonably.

Conclusion

All stages of an employment relationship are in some way regulated by UK law. The importance of a well-drafted contract and coherent policies cannot be underestimated. Effective management of the relationship should help to avoid the need to consider dismissal but, if it comes to that, employers should be aware of the steps that need to be taken to avoid liability and seek advice before concluding any termination.

Outsourcing is the practice of transferring resources and certain tasks of one business to another independent business, which provides specialized services.

Introduction

In the outsourcing process, a business function is carried out by a third party service provider. The hiring business transfers part of its operational management to an outsourcing firm. In this way, the outsourcing firm can operate away from the normal relation of the hiring business and its clients.

Many companies use specialized businesses to manage their most promising business activities. These include areas such as IT, human resources, asset management, real estate and accounting. Many businesses also outsource technical user support as well as telephone call handling, manufacturing and engineering.

The service costs are usually lower if these areas are outsourced. Allowing many businesses, in service and consumer goods industries, to shut down their own customer relation centers and contract these out to a third party.

The main goal of outsourcing is to reduce production costs. But, outsourcing is also a source of competition: as it allows businesses to reduce production costs by outsourcing to firms which offer the best quality at a lower price.

The hiring business no longer has to sustain the costs of running a specialized function, which is a fixed cost. This is replaced by a variable cost, by employing a firm which has already borne these fixed costs. Moreover, the outsourcing firm is more specialized in this function. For the outsourcing firms, this results in an increased market reach and greater specialization in the outsourced task.

Due to this demand, customer service call centers have increased significantly in the Caribbean. This has especially been the case in the Dominican Republic.

Labor Code and the Outsourcing in the Dominican Republic

In the Dominican Republic, national labor laws provide a high level of protection for employees. In particular, Dominican law seeks to ensure that their employers are solvent. Solvency is ensured giving the employee protection by making several businesses jointly responsible for labor debts.

Because of this rule, you need to look closer at the different models of labor relations which can give rise to outsourcing.

Here are the various forms:

a) The subcontracting business. This is a business which relies on another firm to provide goods and services. This firm agrees to carry out the work at their own risk and with their own financial, material and human resources.

b) Labor market intermediation. This brings in an apparent employer between the worker and the actual user or recipient of its services. There are three types of such labor market intermediation:

1) Traditional labor market intermediation. This is carried out by employment agencies, which act only as a contact between the job seeker and the employer and does not get involved in the employment relation. In this type of intermediation, you maintain a two-way relationship, not a three-way relationship.

2) Placement agency. This is where an intermediary, becomes not only the contact between the employer and the employee, but also remains in the employment relation, as the apparent employer.

3) Supply of temporary labor. This is carried out by temporary work agencies, which hire workers and send them to other businesses. These businesses later determine the temporary workers’ duties and supervise their work. The staffing firm has a more limited role. It selects staff, supplies its clients with workers, and pays these workers wages (which are ultimately paid on behalf of their business clients).

In the Dominican Republic, there are different types of contracts used to govern labor relations for outsourcing contracts. But, depending on the circumstances of the contract – even though it is a commercial contract, this could be considered a labor subcontract.

A. The subcontracting business.

In the case of a subcontracting business, there is no employment relation between the service recipient and the subcontracted worker. This is possible because of how a subcontracting business operates. In most instances, it offers services externally. In other words, outside the client’s headquarters. It works with its own budget, its own administration, and without any obvious connection with the service recipient.

In the Dominican Republic, the subcontracting business occurs mainly in the free zone sector where there are subcontracting businesses (textiles, voice and data services) which supply services to large multinational companies and form part of their global outsourcing chain.

In the practical application of Dominican labor law, no labor disputes have arisen involving a service recipient business.

B. Intermediation.

Within these forms, we have commercial subcontracting arrangements which are:

i) Traditional labor market intermediary;
ii) Apparent employer;
iii) Supplier of temporary labor.

Below, we will examine each one of these:

B1. Traditional labor market intermediary.

An intermediary’s role is limited to managing and placing staff on assignments. At no point does this intermediary carry out or take part in the performance of the employment contract. The intermediary takes part in this agreement in return for a commission or fee for every job processed, until the end of the assignment.

This type of outsourcing is governed by article 7 of the Labor Code which states:

… are deemed […] intermediaries those who use workers for jobs in other companies.

This type of outsourcing has not resulted in any disputes in Dominican labor relations. In general, this type of outsourcing is common in large and medium-sized businesses.

B2. Apparent employer

This type of outsourcing is governed by articles 7 – 12 of the Dominican Labor Code.

The first paragraph of Article 7 of the Dominican Labor Code establishes that an intermediation goes beyond that of a typical work placement. It treats the intermediary as one who employs and at the same time involves itself in the performance of the employment contract; and this intermediary even becomes involved in directing any work carried out by the hired workers.

In such conditions, this intermediary becomes an “apparent employer” for all the contracted workers who were generally unaware of their “actual employer”.

But, article 12 of the Dominican Labor Code states that:

Intermediaries are those who do not have all the elements or their own arrangements to fulfill the obligations arising out of the relations with their workers and, are jointly responsible with the contractor or principal employer.

Articles 7 – 12 of the Labor Code intends to regulate labor subcontract; its goal is to assure the workers’ rights by establishing a shared responsibility between all those who take part in the outsourcing chain.

Dominican law permits that both the owner of the work (or ultimate beneficiary) and the contractor may resort to subcontracting of workforce. But does not permit that such outsourcing falls into the hands of a person without solvency.

Let’s turn back to the issue of the intermediary, in particular, the apparent employer. If outsourcing is established, the provision in article 12 of the Labor Code makes jointly responsible all those who are involved in the outsourcing chain.

The same Dominican Supreme Court of Justice established that:

It is the responsibility of the owner of the work, when sued for payment of these fees for contracted workers by a contractor or subcontractor, to prove, not only the existence of the construction contract, but also the financial solvency of these and their independent status. (3rd Chamber, Supreme Court of Justice, January 19th 2005, Judicial Bulletin 1130, page 713).

In fact, take the example of an employee who receives instructions from the business where he is physically working and is paid a salary from this business. In these circumstances, the employee is well within their rights to sue that business regardless of those agreements which have been reached with the sub-contractor.

B3. Supply of Temporary Labor

In the Dominican Republic, are not intermediaries, but employers, those who take on work or part of work in favor of others and carry out this work by themselves, working independently.

In the concierge business, there are businesses that provide cleaning services to homes and businesses from various sectors of the economy. This is also typical in the private security industry, where many surveillance businesses provide services to both homes and businesses.

These business services have operated adequately and have not led to any litigation which has challenged the authenticity of the commercial contract between the supplier of services and the ultimate beneficiary. Nor have the workers involved in this arrangement challenged the status of the supplier.

Suppliers of labor, such as those in the concierge and surveillance business, have operated with independence in their business dealings with their clients. Moreover, the solvency of such businesses has not been challenged, at least in the labor disputes which have taken place so far.

While we said earlier, there have not been any issues because we were dealing solvent companies. Yet, if the intermediary were an insolvent company, we understand that the courts would make the service recipients jointly responsible for the payment of employment benefits.

Conclusion

To sum up, in the Dominican Republic, employees receive a high level of protection from labor laws. The law gives the employee protection by ensuring that businesses are held jointly responsible for their employment, to guarantee the financial safety of their work benefits.

For this reason, it is advised that when you commit to outsourcing contracts of any form, the labor implications should be examined carefully by a legal expert.

From October, 2015, a new duty upon larger businesses will be implemented in UK, requiring them to publicly report steps they have taken to ensure their operations and supply chains are trafficking and slavery free.

The aim of this new legal intervention is to encourage organisations to tackle modern slavery with greater urgency by driving up transparency and raising awareness of this critical issue. Accordingly, whilst legal penalties for breach of the new requirement will be limited, businesses could face the far more costly consequence of adverse publicity and loss of reputation, with campaigning pressure groups being likely to prove increasingly high profile in their monitoring of compliance and condemnation of failure.

What is meant by “modern slavery”?

One might be forgiven for associating the term “slavery” with a by-gone era. But exploitation of others is sadly not a mere vestige of the past and the term “modern slavery” has been adopted, therefore, to encompass modern-day forms of enslavement, including forced and compulsory labour and human trafficking.

Slavery has a devastating impact on individual victims. But it also affects those businesses caught up in increasingly high profile media and online campaigns alleging slavery and human rights abuses.

Sectors frequently cited as vulnerable to forced labour practices include agriculture, construction, hospitality and manufacturing. A common scenario of where workers can become trapped in servitude is where a migrant worker takes a loan to pay for his or her travel to another country to work, or to pay fees to a recruitment company, with a view to repaying the money from their earnings. Such individuals can find themselves trapped in ‘debt bondage’ as other sums are added to the loan while they work, such as accommodation and transport costs, exceeding their capacity to make repayments. Their passports are also withheld often.

Relevance of modern slavery for the business world

While reputable businesses may be satisfied that their own operations are slavery-free, the reality is that slavery, in its various forms, permeates many aspects of the legitimate economy. Even reputable businesses, therefore, may be less clear that organisations in their supply chains or other business relationships, such as franchises, out-sourcing partners and joint-ventures, apply the same rigour to weeding out worker-exploitation.

As has been seen in recent years, ethical business-to-business procurement terms have become more prevalent, reflecting investor and customer sensitivities on human rights and giving rise to increasing demands for disclosure of corporate social responsibility performance data as part of tendering processes. Governments and stock exchanges are requiring greater corporate transparency on human rights, often leading to risks of litigation or regulatory scrutiny. Awareness amongst workers themselves is also heightened, potentially leading to labour dispute and disruption to supply-chains and with pressure groups proving ever more active and vocal. Accordingly, whether for reputational, legal, financial or operational reasons, businesses are under more pressure than ever to take action –and to be seen to be doing so.

What does the new UK duty entail?

The duty, which derives from the Modern Slavery Act, 2015, will apply to all commercial organisations supplying good or services in the UK and having a minimum total turnover of £36 million or more. Significantly, the duty will apply not only to companies incorporated in the UK but to those incorporate elsewhere, if they carry on part of their business in the country.

 To comply, businesses will be required to prepare a slavery and human trafficking statement for each financial year, setting out the steps the organisation has taken during that year to ensure slavery and human trafficking is not taking place in any part of its own business or in any of its supply chain – or alternatively, a statement that it has taken no such steps. This statement must be signed by a director or equivalent (e.g. the general partner in a limited partnership) and be published prominently on the organisation’s website.

The Act sets out areas which “may” be included in the annual statement and statutory guidance will provide more detail on these areas in due course. The suggested areas are:

• information about the organisation’s structure, its business and supply chains;
• the organisation’s policies relating to modern slavery;
• its due diligence processes in relation to slavery and trafficking in its business and supply chain;
• the parts of the business where there is a risk of modern slavery and the steps it has taken to assess and manage that risk;
• its effectiveness in ensuring that modern slavery is not taking place, measured against appropriate performance indicators;
• training available.

When do businesses need to publish a slavery and trafficking statement?

The aim of the UK government is to introduce the disclosure duty in October 2015. It also intends to implement transitional provisions to give businesses sufficient time to prepare, where the financial year end is within close proximity to October. Further details are awaited. However, all indications are that businesses should prepare now, given current timelines.

What are the penalties for failing to publish a slavery and trafficking statement?

The UK legislation imposes limited penalties for non-compliance (the disclosure duty being subject to enforcement by the Secretary of State by injunction, which seems unlikely). However, the presumption is that pressure groups will target businesses in vulnerable sectors, particularly consumer brands, and subject them to reputational campaigns to force annual disclosure. The UK government has also said that it may ‘name and shame’ businesses which drag their heels, an approach that has met with some success in other areas, such as payment of the statutory minimum wage.

How does the UK Act compare with other human rights disclosure duties?

The UK is not the first jurisdiction to adopt a more proactive approach to addressing modern slavery. A similar disclosure provision was introduced in California in 2012, albeit upon even larger organisations, with a turnover threshold of $100m. In terms of reach, however, the UK Act goes further by covering organisations carrying out any part of their business in the UK (no minimum ‘footprint’); all sectors, not just retail and manufacturing; and both goods and services (not just supply chains for goods).

It is noteworthy also that, in 2016, current corporate duties to report on human rights will be strengthened yet further once amendments to the UK Companies Act are brought into force. These amendments go beyond slavery and trafficking. Furthermore, globally, the UN Guiding Principles (‘UNGP’) expect companies to ‘know and show’, through human rights reporting, how they prevent and address salient adverse human rights impacts.

Comment

Some businesses may decide to adopt the UNGP Reporting Framework to ensure a broader, consistent approach to human rights reporting in an effort to meet a number of new stock market and national human rights transparency measures, including the Act. Even so, viewing the UK Modern Slavery Act holistically and in the context of broader focus upon human rights could prove advantageous to businesses more widely, triggering a more focused approach to demonstrating ethical values and practice. It may also facilitate a more co-ordinated method of reporting, avoiding the need for piecemeal responses or duplication.

Inevitably, legal interventions such as by the UK will render modern slavery an issue of compliance, not a voluntary ‘add-on’ but engaging top-level leadership will be instrumental to achieving progress. It will be essential, therefore, that going forwards organisations have a strategy, from identifying who will provide that top-level commitment, to assessing risk and policy approach.